Justice Scalia’s majority opinion begins: “We consider
whether a contractual waiver of class arbitration is enforceable under the
Federal Arbitration Act when the plaintiff’s cost of individually arbitrating
a federal statutory claim exceeds the potential recovery.” The answer: yes. The
FAA’s mandate that arbitration provisions are “valid, irrevocable, and
enforceable” applies [p.3], and “[n]o contrary congressional command requires
us to reject the waiver of class arbitration here.” [p.4]. The opinion
continues: “Respondents argue that requiring them to litigate their claims
individually—as they contracted to do—would contravene the policies of the
antitrust laws. But the antitrust laws do not guarantee an affordable
procedural path to the vindication of every claim.” [p.4]

And on p.5:

Nor does congressional approval of Rule 23 establish an
entitlement to class proceedings for the vindication of statutory rights. To
begin with, it is likely that such an entitlement, invalidating private
arbitration agreements denying class adjudication, would be an “abridg[ment]”
ormodif[ication]” of a “substantive right” forbidden to the Rules, see 28 U. S. C. §2072(b). But there is no evidence of such an entitlement in any event. The
Rule imposes stringent requirements for certification that in practice exclude
most claims. And we have specifically rejected the assertion that one of those
requirements (the class-notice requirement) must be dispensed with because the
“prohib­itively high cost” of compliance would “frustrate [plain­tiff’s]
attempt to vindicate the policies underlying the antitrust” laws. Eisen v.
Carlisle & Jacquelin, 417 U. S. 156, 166–168, 175–176 (1974). One
might respond, per­haps, that federal law secures a nonwaivable opportunity to
vindicate federal policies by satisfying the procedural strictures of Rule 23
or invoking some other informal class mechanism in arbitration. But we have
already rejected that proposition in AT&T Mobility, 563 U. S., at
___ (slip op., at 9).

The majority also rejects the plaintiffs’ invocation of an “effective
vindication” exception to mitigate arbitration provisions that prevent the
enforcement of federal rights [pp.6-7
(footnotes omitted)]:

As we have described, the exception finds its origin in the desire
to prevent “prospec­tive waiver of a party’s right to pursue statutory
reme­dies,” Mitsubishi Motors, supra, at 637, n. 19 (emphasis
added). That would certainly cover a provision in an arbitration agreement
forbidding the assertion of certain statutory rights. And it would perhaps
cover filing and administrative fees attached to arbitration that are so high
as to make access to the forum impracticable. See Green Tree
Financial Corp.-Ala. v. Randolph, 531 U. S. 79, 90 (2000) (“It may
well be that the existence of large arbi­tration costs could preclude a
litigant . . . from effectively vindicating her federal statutory rights”). But
the fact that it is not worth the expense involved in proving a
statutory remedy does not constitute the elimination of the right to pursue that
remedy. See 681 F. 3d, at 147 (Jacobs, C. J., dissenting from denial of
rehearing en banc).The class-action waiver merely limits
arbitration to the two contracting parties. It no more eliminates those
parties’ right to pursue their statutory remedy than did federal law before its
adoption of the class action for legal relief in 1938, see Fed. Rule Civ. Proc.
23, 28 U. S. C., p. 864 (1938 ed., Supp V); 7A C. Wright, A. Miller, & M.
Kane, Federal Practice and Procedure §1752, p. 18 (3d ed.2005). Or, to put it
differently, the individual suit that was considered adequate to assure
“effective vindication” of a federal right before adoption of class-action
proce­dures did not suddenly become “ineffective vindication” upon their
adoption.

At times the majority seems to question whether an effective vindication exception even exists, arguing that the language in Mitsubishi Motors is dicta [see p.6 & fn.2].

Justice Kagan’s dissenting opinion begins:

Here is the nutshell version of this case, unfortunately obscured
in the Court’s decision. The owner of a small restaurant (Italian Colors)
thinks that American Express (Amex) has used its monopoly power to force
merchants to accept a form contract violating the antitrust laws. The restaurateur
wants to challenge the allegedly unlawful provision (imposing a tying
arrangement), but the same contract’s arbitration clause prevents him from
doing so. That term imposes a variety of procedural bars that would make
pursuit of the antitrust claim a fool’s errand. So if the arbitration clause is
enforceable, Amex has insulated itself from antitrust liability—even if it has
in fact violated the law. The monopolist gets to use its monopoly power to insist
on a contract effectively depriving its victims of all legal recourse.

And here is the nutshell version of today’s opinion, admirably
flaunted rather than camouflaged: Too darn bad.

That answer is a betrayal of our precedents, and of federal
statutes like the antitrust laws. Our decisions have developed a
mechanism—called the effective vindication rule—to prevent arbitration clauses
from choking off a plaintiff ’s ability to enforce congressionally created
rights. That doctrine bars applying such a clause when (but only when) it
operates to confer immunity from potentially meritorious federal claims. In so
doing, the rule reconciles the Federal Arbitration Act (FAA) with all the rest
of federal law—and indeed, promotes the most fundamental purposes of the FAA
itself. As applied here, the rule would ensure that Amex’s arbitration clause
does not foreclose Italian Colors from vindicating its right to redress
antitrust harm.

The dissent concludes:

The Court today mistakes what this case is about. To a
hammer, everything looks like a nail. And to a Court bent on diminishing the
usefulness of Rule 23, everything looks like a class action, ready to be
dismantled. So the Court does not consider that Amex’s agreement bars not just class
actions, but “other forms of cost-sharing . . . that could provide effective
vindication.” Ante, at 7, n. 4. In short, the Court does not
consider—and does not decide— Italian Colors’s (and similarly situated
litigants’) actual argument about why the effective-vindication rule pre­cludes
this agreement’s enforcement.

As a result, Amex’s contract will succeed in depriving
Italian Colors of any effective opportunity to challenge monopolistic conduct
allegedly in violation of the Sherman Act. The FAA, the majority says, so
requires. Do not be fooled. Only the Court so requires; the FAA was never meant
to produce this outcome. The FAA conceived of arbitration as a “method of resolving
disputes”—a way of using tailored and streamlined procedures to facilitate
redress of injuries. Rodriguez de Quijas, 490 U. S., at 481 (emphasis
added). In the hands of today’s majority, arbi­tration threatens to become more
nearly the opposite—a mechanism easily made to block the vindication of merito­rious
federal claims and insulate wrongdoers from liabil­ity. The Court thus
undermines the FAA no less than it does the Sherman Act and other federal
statutes providingrights of action.

Comments

Correct me if I'm wrong, but isn't there a pretty remarkable distinction between the antitrust context and say, the employment context, with regard to these waivers? In antitrust, we see certain private parties as the "proper parties" to vindicate anticompetitive consumer harm and, from the outset, deny standing to an ordinary consumer since we believe their interests, as a general matter, will be vindicated by direct (and sometimes indirect) purchaser suits. In employment or other consumer contract cases, I would think the contractual enforcement paradigm works much better, where the rights at issue in the underlying contract belong to the parties to the contract, and nobody else. Perhaps I'm off base, since I'm not sure it is accurate to say that antitrust statutes create "rights" in consumers. Would love to hear the thoughts of others on this.